BILL NUMBER: SB 965	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MARCH 28, 2012
	AMENDED IN SENATE  MARCH 8, 2012

INTRODUCED BY   Senator Wright
   (Coauthor: Senator Blakeslee)

                        JANUARY 11, 2012

   An act to add Section 13293 to the Water Code, relating to water
quality.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 965, as amended, Wright.  State Water Resources Control Board
and California regional water quality control boards: ex parte
communications. 
   Under existing law, the State Water Resources Control Board (state
board) and the California regional water quality control boards
(regional boards) implement the Federal Water Pollution Control Act
and the Porter-Cologne Water Quality Control Act by prescribing waste
discharge requirements for discharges to the waters of the state, as
specified. Existing law authorizes the state board and regional
boards to hold hearings necessary for carrying out their duties, as
specified.  
   The Administrative Procedure Act establishes the conduct of
administrative adjudicative proceedings, which are defined as
evidentiary hearings for determination of facts pursuant to which a
state agency formulates and issues a decision. Existing law defines a
decision as an agency action of specific application that determines
a legal right, duty, privilege, immunity, or other legal interest of
a particular person. The act prohibits, as an ex parte
communication, while an adjudication is pending, any communication,
direct or indirect, regarding any issue in the proceeding, to the
presiding officer, as defined, from an employee or representative of
an agency that is a party or from an interested person outside the
agency, without notice and opportunity for all parties to participate
in the communication. The act provides that if the above prohibition
is violated, the presiding officer shall promptly disclose the
content of the communication on record and give all parties an
opportunity to address the communication, as specified. The act also
provides that a violation of that prohibition may be grounds for
disqualification of the officer who engaged in the ex parte
communication.  
   This bill would provide that the ex parte communications
provisions of the Administrative Procedure Act do not apply to
specified proceedings of the state board or a regional board. This
bill would instead, prohibit a state board, regional board member, or
a person, other than a board staff member acting in his or her
official capacity, who intends to influence the decision of a board
member on a matter before the board, from conducting an ex parte
communication, as defined. This bill would provide that if an ex
parte communication occurs, the board member shall notify the
interested party that a full disclosure of the ex parte communication
shall be entered in the board's record. This bill would also
provide, however, that a communication is not a prohibited ex parte
communication if the communication is fully disclosed and a request
is made that the communication be placed in the board's official
record of the proceeding, as specified.  
   Existing law establishes the State Water Resources Control Board
and the California regional water quality control boards and
authorizes them to adopt regulations to carry out their powers and
duties and to conduct administrative adjudicative proceedings. The
Administrative Procedure Act establishes the conduct of
administrative adjudicative proceedings, which are defined as
evidentiary hearings for determination of facts pursuant to which a
state agency formulates and issues a decision. Existing law defines a
decision as an agency action of specific application that determines
a legal right, duty, privilege, immunity, or other legal interest of
a particular person.  
   This bill would prohibit a state board, regional board member, or
a person, other than a board staff member acting in his or her
official capacity, who intends to influence the decision of a board
member on a matter before the board, from conducting an ex parte
communication, as defined. This bill would provide that if an ex
parte communication occurs, the board member shall notify the
interested party that a full disclosure of the ex parte communication
shall be entered in the board's record. This bill would also provide
that certain communications cease to be ex parte communications, as
specified. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 13293 is added to the Water Code, to read:
   13293.  (a) For the purposes of this section:
   (1) "Ex parte communication" means an oral or written
communication concerning matters, other than purely procedural
matters, under the jurisdiction of the state board or a regional
board, pursuant to Article 4 (commencing with Section 13260) or
Chapter 5.5 (commencing with Section 13370).
   (2) "Board" refers to both the State Water Resources Control Board
and the  Regional Quality Control Boards  
regional water quality control boards  .
   (b) A board member, or a person, other than a board staff member
acting in his or her official capacity, who intends to influence the
decision of a board member on a matter before the board, shall not
conduct an ex parte communication, except as follows:
   (1) If an ex parte communication occurs, the board member shall
notify the interested party that a full disclosure of the ex parte
communication shall be entered in the board's record.
   (2) Communications cease to be ex parte communications when either
of the following occurs:
   (A) The board member or the person who engaged in the
communication with the board member fully discloses the communication
and requests in writing that the communication be placed in the
board's official record of the proceeding.
   (B) Two or more board members receive substantially the same
written communication, or are party to the same oral communication,
from the same party on the same matter, and a single board member
fully discloses the communication on behalf of the other board member
or members who received the communication and requests in writing
that it be placed in the board's official record of the proceeding.
   (c) Notwithstanding Section 11425.10 of the Government Code, the
ex parte communications provisions of the Administrative Procedure
Act (Article 7 (commencing with Section 11430.10) of Chapter 4.5 of
Part 1 of Division 3 of Title 2 of the Government Code) do not apply
to proceedings of the state board or a regional water quality control
board to which this section applies.